Wunsch v. Weber.

lability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel anyone, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass." This amendment has changed the law, but it is not so certain that it will ever change the general sentiment of mankind which was expressed in that remark. The power conferred by the amendment should never be used in such a way as to leave any doubt as to the fairness and good faith of the proceeding, otherwise it may prove to be a sword instead of a shield. It should be a fair and open inquiry after truth, in which both sides are or may be participants. If it is used only for the purpose of enabling the defendant to prepare expert witnesses to give testimony at the trial, it will be hardly possible to keep the fact from the jury, and it is easy enough to see how such an element in the case might be used to excite sympathy, stimulate prejudices, and in some cases possibly to enhance damages.

The order appealed from should be affirmed, with

costs.

All the judges concurred except EARL, FINCH and BARTLETT, JJ., dissenting.

Order affirmed.

WUNSCH v. WEBER.

N. Y. Court of Common Pleas, before CLARENCE F. BIRDSEYE, ESQ., Referee; April, 1894.

1. Depositions; examination of parties before trial.] Upon a reference for the physical examination of plaintiff, before trial, in an action for personal injuries, the physician appointed to make the examination will be allowed to ask plaintiff such questions

Wunsch v. Weber.

as may be necessary to enable him as a physician to ascertain and report fully upon the nature and extent of the injuries complained of.*

2. The same; function of the expert.] The physician is to be regarded as serving the court and not either of the parties, and his examination should be full and complete as well as impartial.

Physical examination of plaintiff before trial in an action for personal injuries.

Action brought by Frederick Wunsch against Louis Weber and Edward Weber.

R. Dulany Whiting, for plaintiff.

Charles C. Nadal, for defendants.

CLARENCE F. BIRDSEYE, ESQ., Referee, upon overruling plaintiff's objection to the witness being asked any question by the doctor, referee or defendants' attorney, as being irrelevant, immaterial, and not coming within the scope and purport of the order of reference, rendered the following opinion:

The amendment to §§ 872 and 873 of the Code of Civil Procedure, under which this examination is taken, authorizes an entirely new procedure in actions to recover damages for personal injuries, and, so far as I can ascertain, the practice upon such an examination has never been determined. As this objection goes to the foundation of the whole examination and the method of conducting it. it is proper to state the rules which, it seems to me, should govern the taking of the testimony.

The examination is had under §§ 872 and 873 of the Code of Civil Procedure, as amended by chapter 721 of the Laws of 1893. Section 872 is amended by inserting in subd. 4 thereof, which relates to relates to the statements

* See preceding case, and note at the end of this case.

Wunsch 7. Weber.

of the affidavit to be made in obtaining an order for the examination, the following words: "And if the action is to recover damages for personal injuries, that the defendant is ignorant of the nature and extent of such personal injuries." Section 873 is amended by adding after the second sentence thereof the following words: "In every action to recover damages for personal injuries, the court or judge, in granting an order for the examination of the plaintiff before trial, may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons, to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper. In any action brought to recover damages for personal injuries, where the defendant shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court or judge shall order that such physical examination be made."

These amendments seem to materially enlarge the scope of an examination of an opposing party before trial if, indeed, they do not authorize an entirely new procedure in such cases.

As frequently happens where statutes have been amended so as to materially enlarge their scope or incorporate into them new subjects, the engrafting of this amendment upon the former provisions of the Code has not been very artistically done, and considerable is left for judicial construction as to the exact meaning of the statute. In arriving at such construction, it is necessary to consider the law as it stood and the words of the amendment itself.

In the first place this amendment becomes part of art. I of title 3 of chap. 9 of the Code of Civil Procedure. The chapter relates to evidence, and art. 3 to depositions taken and to be used within the State, and

Wunsch v. Weber.

§ 871 prescribes that the article as a whole is to apply to the depositions provided for, including those for the examination of parties before trial.

The amendment to § 873 seems to be in two parts. The first sentence provides that: "In every action to recover damages for personal injuries, the court or judge granting an order for the examination of the plaintiff before trial may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge." This seems to be simply an additional point on which, and a new way in which, the plaintiff can be examined in an ordinary examination before trial, and this sentence of the amendment appears to provide that on such an examination the plaintiff may be questioned as to any of the matters covered by the law as it formerly stood, and may also be physically examined by one or more physicians to be appointed by the court. The second sentence of the amendment, however, covers a case like the present, where the defendant presents satisfactory evidence to the court or judge "that he is ignorant of the nature and extent of the injuries complained of." Under this second sentence it is evident that such matters only as are necessary to ascertain "the nature and exten, of the injuries complained of " can be inquired into.

This statute, which is somewhat blind, is to be construed by the ordinary rules, and it becomes necessary first to ascertain and give eft to the intent of the law makers; second, to so construe the statute as to give effect to all parts of it; and third. to so construe the amendment as to make it of some practical effect, and not nugatory.

It is evident that the intent of the Legislature was that the physical examination should disclose the nature and extent of the injuries," for these words appear in the amendment to each section. The examination is to be made by a thoroughly disinterested and competent phy

Wunsch v. Weber.

sician to be appointed by the court and not nominated by the parties (§ 873). This amendment seems to authorize the appointment of a new form of court officer, who, like a referee appointed under this article of the Code, is directly responsible to the court and not to the parties. As the examination is for the benefit of the court and for the use of either party upon the trial (Code Civ. Pro., § 881), it should be full and complete, as well as impartial. We are all aware that a physician or surgeon cannot make a complete and thorough physical examination, especially of diseases or injuries to the internal organs, without asking of the patient his various symptoms. This must be especially so in the case of a physician or surgeon who is called in a long time after the injury has occurred, and who, from the nature of the case, had no opportunity to study himself the symptoms of the patient at the time of and immediately after the injury. If a physician is not to ascertain these symptoms and weigh them in the light of his professional knowledge, his examination would not be of materially more value than that of a layman. Certainly, this amendment is not to be so construed as thus to render it nugatory at the very threshold of the inquiry.

I shall, therefore, overrule the objection so far as it relates generally to any oral examination, and will give the plaintiff a general exception upon which he may raise the question of the right of the physician to ask orally any questions; and I instruct Dr. Speir that he will be allowed to ask such questions as in his opinion are necessary to enable him as a physician to ascertain and report fully upon "the nature and extent of the injuries complained of" in the complaint. If any of his questions are objected to as not material, relevant or competent to enable him to ascertain the nature and extent of the injuries, I will pass separately upon such questions when the objection is taken.

VOL. XXXI.-24